The Travel Ban at the Supreme Court

The Supreme Court’s travel ban case, Trump v. International Refugee Assistance Project, was seen by many as a mixed decision, with part of the preliminary injunction being upheld (for persons who have a sufficient connection with the US) and part being struck down.  President Trump viewed it is a victory, whereas some critics of the ban viewed it as a harbinger of ultimate victory for their side.

The main argument of those who view it as a harbinger of ultimate victory is the claim that to uphold the injunction in any respect required the Supreme Court to conclude that the plaintiffs were likely to prevail in the future (see below).  While the ban might not apply to people who do not have a sufficient connection with the U.S., it would apply to those who did.  And that would suggest that the Court believed that the ban likely violated the Establishment Clause (because taken out of anti-Muslim bias) or the statutory requirements of the Immigration and Nationality Act.  If the Court believes that, that would represent a significant loss for Trump.

But I believe that this view of the decision is a bit premature.  While it is possible that a majority of the Court does believe that there is a likelihood the plaintiffs will prevail on the merits, that is not necessarily the case.

The first hint that a majority of the Court might not believe that the plaintiffs are likely to prevail on the merits is that the decision did not discuss this issue.  The traditional test for securing a preliminary injunction involves four features: probability of success, irreparable injury, balance of hardships, and public interest.  The failure to discuss the first element was quite peculiar.  In an ordinary analysis, the omission of this element would be a glaring mistake (in a law school exam, that omission would result in a low grade).  The obvious question is whether the Supreme Court really believed that there was a likelihood of success.  And if so, why did they omit a discussion of it?

Obviously, I don’t know the answer to this.  But I can offer a possible explanation that would suggest that the Court’s discussion and result do not necessarily indicate that it will strike down the travel ban for people who have a connection with the U.S.

The four part test for securing a preliminary injunction has two different interpretations.  According to one national remedies expert, the Supreme Court has gone back and forth between two interpretations of this four part test.  Under the first, a court must conclude that all four elements are satisfied.  Under the second, a court must balance these elements, so that a strong showing on one can make up for a weaker showing on another.

Perhaps the Court failed to discuss the likelihood to prevail on the merits feature because it was applying the second interpretation of the test.  A reading of the opinion shows that its focus was on the harm to people from the ban – one of the four elements.  This, combined with the failure to discuss the likelihood of success, suggests the following possibility.  At least two members of the six member majority supporting the Court’s decision – most likely Chief Justice Roberts and Anthony Kennedy – did not believe that there was a likelihood of success on the merits.  Instead, they might have thought that the likelihood of success of the plaintiffs was relatively strong, but still less than 50 percent.  But they might have still voted to support part of the injunctions on the ground that the hardship to some of parties was very significant.  If this was the thinking of Roberts and Kennedy, this would suggest that at the merits stage, these two justices (plus the three concurring/dissenting justices) might support the government on both the Establishment and statutory issues and entirely reverse the prior (modified) injunctions.

One motivation for this action might have been Roberts’s (and possibly Kennedy’s) concern about the institutional position of the judiciary.  If both circuit court injunctions were struck down in their entirety now, then Roberts might have been concerned that this would provide too much support for Trump and his criticism of judges.  Instead, the Supreme Court’s current decision seems like a mixed result.  If eventually the Supreme Court upholds the entire executive order, the time between lower court decisions and Supreme Court approval will mitigate the impact of that approval.

Of course, I’m not predicting this is going to happen.  But I think this is a scenario that others have neglected – one that leaves open the possibility that the Court will decide in favor of the travel ban when it eventually gets to the merits.